895 F.

2d 34

28 Soc.Sec.Rep.Ser. 444, Unempl.Ins.Rep. CCH 15226A

Barbara BECKER, etc., et al., Plaintiffs, Appellees,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
Appeal of Lisa MARCOUX on Behalf of Amy MARCOUX,
Defendant-In-Intervention, Appellant.
No. 89-1732.

United States Court of Appeals,

First Circuit.
Heard Dec. 7, 1989.
Decided Feb. 1, 1990.

Ellen L. Gordon, Manchester, N.H., with whom New Hampshire Legal

Assistance was on brief, for defendant-in-intervention, appellant.
Charles L. Flower, for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit
Judges.
BREYER, Circuit Judge.

The Social Security Administration ("SSA") had to decide whether Amy

Marcoux was the legitimate daughter of Gene Marcoux or the illegitimate
daughter of the late Raymond Petit. If the latter, the SSA will pay Amy a share
of Raymond Petit's survivor's benefits, although in order to do so, it will have to
reduce the current payments it makes to Raymond's two legitimate children.
See 42 U.S.C. Secs. 402(d), 403(a). These two children, through their mother
(Barbara Becker), have opposed Amy's benefit application. See 20 C.F.R. Sec.
404.932 (1989). After hearing testimony from Amy's mother, Lisa Marcoux,
from Lisa's mother, from Raymond's sisters, and from other relatives and
acquaintances, an Administrative Law Judge decided that Amy was
illegitimate, that Raymond Petit was Amy's father, and that Amy should receive

benefits.
2

The Appeals Council of the Department of Health and Human Services

reviewed the ALJ's findings and sent the case back to the ALJ. A federal
statute requires the HHS, in

3
determining
whether an applicant is the child or parent of a[n] ... insured individual,
... [to] apply such law as would be applied in determining the devolution of intestate
personal property by the courts of the State in which such insured individual ... was
domiciled ... at the time of his death.
4

49 U.S.C. Sec. 416(h)(2)(A). Under New Hampshire law, (as the Appeals
Council read it),

a5 child born to married parents is presumed to be legitimate. This presumption can

be rebutted by clear and convincing evidence. However, this evidence may not
consist of statements or testimony from the child's mother or her husband.
6

Fearing that the ALJ had improperly relied on testimony given by Amy's
mother Lisa, the Appeals Council remanded for further consideration.

On remand, the ALJ disregarded both Lisa's testimony and a letter written by
Eugene Marcoux. It then reached the same conclusion as it had before. Relying
solely on record evidence provided by others, the ALJ found clear and
convincing evidence that Eugene Marcoux was not Lisa's father, and that
Raymond Petit was. This time the Appeals Council affirmed. Raymond's other
children then asked the federal district court to review the federal agency's
findings. The court did so. It concluded that the evidence before the agency was
not strong enough to show that Amy was Raymond's child, and it set aside the
agency's determination. Amy's mother (Lisa), acting on Amy's behalf, now
appeals that decision to us.

We shall assume, for the sake of argument, that the statute we have quoted
above, 49 U.S.C. Sec. 416(h)(2)(A), requires HHS to apply, not only New
Hampshire's substantive law, including presumptions and burden-of-proof
rules, but also special evidentiary rules such as the one that limits a mother's
testimony on the question of her own child's legitimacy. Specifically, we shall
assume:

(1) that, because Lisa Marcoux was married to Gene Marcoux when Amy was
born, the agency must presume that Amy is legitimate. See Twomey v.

Twomey, 116 N.H. 29, 31, 351 A.2d 66 (1976);

10

(2) that to overcome the presumption, Amy must establish, by clear and
convincing evidence, that Raymond Petit was her father. See
N.H.Rev.Stat.Ann. Sec. 561:4;

11

(3) that, in doing so, Amy cannot use her mother's testimony to help rebut the
presumption. We recognize that the extent to which this evidentiary rule,
known as Lord Mansfield's Rule, bars a mother's testimony is open to
argument. Does it bar all testimony that casts doubt on legitimacy or only
testimony about a husband's "access"? See State v. Sargent, 100 N.H. 29, 31,
118 A.2d 596 (1955); Saunders v. Fredette, 84 N.H. 414, 418, 151 A. 820, 824
(1930); Parker v. Way, 15 N.H. 45, 49 (1844); see generally Michael H. v.
Gerald D., --- U.S. ----, 109 S.Ct. 2333, 2342-43, 105 L.Ed.2d 91 (1989). We
need not answer this question, for the Appeals Council found that the ALJ, the
second time around, based his conclusions, not on Lisa's testimony, but on other
evidence in the record, such as "information provided by the families and
friends of Lisa Marcoux and Raymond Petit." It also found that this other
evidence, taken by itself, constituted "clear and convincing evidence" that
Eugene Marcoux was not Amy's father. In our view, the record adequately
supports this final HHS conclusion.

12

The precise legal question before us is whether, on the basis of the whole
record, we can say that "substantial evidence" supports the agency's factual
conclusion. See 49 U.S.C. Sec. 405(g) ("The findings of the Secretary as to any
fact, if supported by substantial evidence, shall be conclusive"); Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)
("substantial evidence" means " 'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion' " (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126
(1938))); Universal Camera v. NLRB, 340 U.S. 474, 477-91, 71 S.Ct. 456, 45166, 95 L.Ed. 456 (1951) (holding that "substantial evidence" review requires
consideration of the record as a whole); Allen v. Califano, 613 F.2d 139, 145
(6th Cir.1980) (same). In light of New Hampshire law, the question looks
awkward: "Is there substantial evidence that would permit the agency to find by
clear and convincing evidence that Amy was Raymond's daughter?" But to
apply this legal standard is not particularly awkward as long as one remembers
its point, namely, that Congress has entrusted the agency, not the court, with
the factfinding job. A reviewing court must treat the agency's factual conclusion
with considerable respect, indeed more respect than an appellate court would
show a factual conclusion reached by a district judge, for the agency has not
only had an opportunity to view the witnesses and determine their credibility,

but it also has special expertise, experience, and knowledge of the subject
matter that guide its determination of the facts. See Consolo v. Federal
Maritime Comm., 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131
(1966) ("substantial evidence" review "gives proper respect to the expertise of
the administrative tribunal"); Penasquitos Village, Inc. v. NLRB, 565 F.2d
1074, 1078-79 (9th Cir.1977) ("Weight is given the administrative law judge's
determinations of credibility for the obvious reason that he or she 'sees the
witnesses and hears them testify, while the ... reviewing court look[s] only at
[the] cold record[ ].' " (quoting NLRB v. Walton Mfg. Co., 369 U.S. 404, 408,
82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962))); Orvis v. Higgins, 180 F.2d 537, 540
(2d Cir.1950) ("evidence sufficient to support a jury verdict or an administrative
finding may not suffice to support a judge's finding"); K. Davis, 5
Administrative Law Treatise Sec. 29:26, at 455 (2d ed.1984). Thus, the real
question for a court is whether a court, keeping these considerations in mind,
could say that the agency could not find, by "clear and convincing evidence,"
that Raymond was Amy's father. After examining the record, we conclude that
the district court was wrong to set the agency's determination aside.
13

The record contains highly detailed testimony from Lisa's mother, Lisa's sister,
and Raymond's sisters. Some, or all, of them testified in detail about Lisa's
relationships with her husband, Eugene, and with Raymond Petit. They said that
Lisa had separated from Eugene in 1982, that Eugene did not live in New
Hampshire, that Lisa had lived with Raymond between 1982 and June 1984,
that she was living with Raymond in March 1984 when Amy was conceived,
that Raymond had told them that he and Lisa wanted a child, that Raymond had
told them that he and Lisa had conceived a child that Lisa miscarried, that he
told them Lisa was again pregnant with Amy, that he began to live separately
from Lisa in June 1984 (because Lisa and he fought about his drinking
problem), that he nonetheless provided Lisa with money (when available) to
help support Amy, as well as with diapers and baby bottles, that he was proud
of Amy, that he said he was Amy's father, that he brought Amy Christmas and
Easter presents, and that he visited Amy. This testimony is sufficiently detailed,
and those who provided it seem sufficiently aware of the circumstances, to
permit a factfinder who believed it to conclude that Raymond was Amy's
father. And the ALJ, who heard the testimony, had every right to believe it. See
Rodriguez v. Secretary of Health And Human Services, 647 F.2d 218, 222 (1st
Cir.1981) (" 'Issues of credibility ... are the prime responsibility of the
Secretary' " (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st
Cir.1965))).

14

The record also contains contrary evidence, but none of that evidence compels a
contrary finding. First, in 1979 Raymond had a vasectomy. The ALJ was free to

disregard this fact, however, for a Dr. Conway, in 1982, performed a vasectomy
reversal. Dr. Conway wrote that he could not say for certain whether
Raymond's particular reversal worked, because Raymond never returned for a
"post-operative sperm count;" but he did say that the "vasectomy reversals that
we have performed have generally been successful...."
15

Second, Amy's birth certificate says that Eugene Marcoux is her father. The
ALJ need not have given weight to this fact, however, for Lisa's mother
testified that "the hospital has the policy that if you're married you have to have
a person your married to's name. You can't have a baby under another name;"
and Lisa's sisters also testified that (whatever the hospital's actual policy) Lisa
thought she had to give Eugene's name irrespective of the actual father.

16

Third, Barbara Becker, Raymond's wife and the mother of the legitimate
children, testified that Eugene was in New Hampshire in April 1984, just after
the time Amy was conceived, that he visited Lisa, and that Lisa and Raymond's
relationship, which had been sporadic, was stormy at that time. Of course, the
ALJ was free to disregard Barbara Becker's testimony completely. See
Rodriguez, supra. Moreover, testimony from Lisa's sister and mother weakened
the impact of Barbara's testimony. They explained that Eugene and Lisa had
two children before Amy was born, that Eugene occasionally would "come
back on leave" from the Navy to visit these children, that "usually [their] bags
were already packed, and they were all ready to go when he got there," and that
he "used to take them over to his brother's house, pick them up and go right
over there and spend the weekend."

17

Fourth, the record contains some other, miscellaneous evidence, such as that
Eugene's insurance paid for Amy's birth, and that various individuals to whom
Raymond had spoken about his children said that he did not mention Amy. This
evidence is weak, barely significant, on the paternity question.

18

In sum, having reviewed the record on the assumptions that the Appeals
Council made--that Lisa's testimony would not be counted--we conclude that it
legally supports the agency's decision. Given the broad scope of the agency's
legal power to make factual determinations, we must uphold, on the basis of the
testimony and related evidence (Lisa's aside), its conclusion that the evidence
clearly and convincingly shows Raymond is Amy's father.
The judgment of the district court is

19

Reversed.